Federal judge orders Texas prison to provide hand sanitizer, face masks for inmates

^{Editor's note: this story has been updated with additional comment.}

A federal judge has issued a temporary order requiring one Texas prison to provide hand sanitizer and face masks to inmates. The order comes after older inmates at a geriatric prison sued the Texas Department of Criminal Justice over its handling of the new coronavirus.

After multiple hearings and an inmate’s related death at the Pack Unit near College Station, U.S. District Judge Keith Ellison in Houston issued a preliminary injunction Thursday night. The order also requires TDCJ to provide cleaning supplies to inmates and present a plan within three days to test all inmates at the unit for the virus.

On Friday, TDCJ appealed the ruling in the 5th U.S. Circuit Court of Appeals and asked Ellison to pause his order pending the appeal. The judge granted a five-day stay Friday afternoon — putting the ruling into effect on Wednesday — while he writes up a more detailed memorandum on the factual and legal basis for his order. Texas Attorney General Ken Paxton said in a news release that the order "prioritized the health concerns of convicted criminals over those of medical professionals" by giving them protective gear and more testing. The order states the inmate masks can be cotton, provided they are laundered regularly.

By Thursday, 327 Texas prisoners had tested positive for the coronavirus. A total of 531 tests had been completed of the approximately 140,000 inmates in the state’s prison system, according to TDCJ reports. More than 25 of the state’s more than 100 prison units were on lockdown — where all activity is halted and inmates are largely kept to their dorms or cells — because a person recently tested positive.

At a phone hearing on Thursday, a state attorney representing TDCJ said 64 inmates at the Pack Unit had been tested, most of which was after 62-year-old Leonard Clerkly died on Saturday. He was taken to a local hospital after having trouble breathing and died hours later, suspected of viral pneumonia caused by COVID-19, the respiratory disease caused by the new coronavirus. Previously, TDCJ has said mass testing of inmates at a facility has not occurred. The Pack Unit often holds around 1,200 men. Desel said Friday that inmates are tested when it is deemed necessary by a medical professional, most often because they are symptomatic.

During the hearing, Assistant Attorney General Christin Vasquez argued that a ruling against the agency was wrong because "the record is voluminous with what TDCJ has already done" to prevent and contain the spread of the coronavirus. She noted that the agency had restricted the movement of many inmates to their living areas, and shifted recreation and meal times systemwide to have less people in one space at a time.

The push for hand sanitizer for prisoners, however, was met with resistance by TDCJ. Vasquez said the agency opted not to provide hand sanitizer, which the Centers for Disease Control and Prevention advises jails and prisons to consider, because inmates could drink it and it is flammable. She noted inmates often set fires in prison — which sometimes happens out of protest or to get guards' attention.

Ellison and the inmates' attorneys dismissed the idea. One prisoner who testified via telephone at the hearing laughed at the idea of drinking it and said he did not know of inmates at the Pack Unit setting fires.

“It really seems to me unlikely that people will try to drink it or inhale it in some other way,” Ellison said.

Jeff Edwards, an attorney for the inmates who also represented inmates at the same prison in a lawsuit over prison heat and a lack of air conditioning, said the flammable argument is not a real issue. He said inmates also already have plenty of flammable materials, like paper, clothing and books.

"The Court’s decision to stop the Texas Department of Criminal Justice from continuing to endanger the inmates at the Pack Unit represents a victory for all Texans and is a reminder that the Constitution protects everyone," Edwards said after the ruling Thursday. "As a consequence of the decision, the inmates, the correctional officers watching over them and the surrounding community are much safer."

But Paxton said Friday that now is not the time for what he called "judicial activism."

"In the same way a federal judge tried to order personal protective equipment to abortion providers, now a judge wants supplies reserved for hardened criminals," he said in his statement. "Medical professionals on the frontline of this battle cannot be pushed aside."